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Lucy, Esq., Lawyer

Category: Real Estate Law

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My husband of 4 years (who is a lawyer) and I recently "separated".

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My husband of 4 years (who is a lawyer) and I recently "separated". I live in my own home that I acquired before the marriage, and he lives in our cabin that we both paid half for just prior to our marriage. We visit each other and no papers have been filed as to a legal separation. This happened 3 weeks ago.

My question is twofold. My husband is in the process of purchasing a house for his daughter. This is against my wishes, as he is taking out a large loan, and I am worried that I will be responsible for it. As a down payment he is using, partially a small inheritance, sick leave saved over the years, and his paychecks. He also has a huge mortgage on a house he owns separately, so I have allowed him to live rent free in my house for 3 years, as well as in the cabin now, which means I do not get to enjoy it or have my family or friends up there. I would like to know if he can purchase this new house for his daughter without my consent or signature, and in the affirmative, if I will become part owner with the benefits and responsibilities therein. He is also going to use community property to fix up the property after purchase.

My second question is this: At this point in our marriage my husband is strongly encouraging me to sell my house which has a small mortgage on it, and quite a lot of equity. He keeps wanting to get together under other pretenses, and keeps bringing up this subject. The house is in a revocable living trust, established before my first husband died, benefiting my two children from a previous marriage. I am wondering if he is doing that now that we are unofficially separated, because the proceeds would then become community property? We live in California.

The general rule is that both spouses are responsible for debts acquired during the marriage. Cal. Fam. Code, Section 910. However, property acquired after the parties are living separate and apart are considered the sole property of that spouse. Section 771. It is likely that the bank will want some documentation from you, since you are legally married, before allowing him to buy the property. You may be able to agree to sign paperwork where you agree to give up any claim to the property, in exchange for not being on the loan or liable for the loan. You do not have to agree to sign any loan paperwork if you don't want to. If you have a court ordered legal separation judgment before he buys the house, then you're completely not responsible for it. Section 772.

The money in your trust is your separate property, since it was acquired before you married. However, if you commingle that money with marital assets, he may be able to claim that you converted it to community property - which would give him a claim. You don't want that. If you have a bank account in the name of the trust, and deposit the proceeds of the sale directly into that account, that would help preserve your claim that the money is your separate property (assuming that he can't access the trust account).

There is no reason for you to sell the house if you do not wish to do so, and he really can't force the issue. If you wanted to sell it, you could somehow negotiate with him to see what he would give you in exchange for selling it, but that should include his signature on a piece of paper swearing that he has no claim to the property, or the proceeds of the sale, and will not try to claim either, even if you commingle funds.

If you have any questions or concerns about what I've written, please reply so that I may address them. It's important to me that you are 100% satisfied with the service I provide. Otherwise, please rate my service positively so that I get credit for answering your question. Thank you.

Thank you for an excellent answer. I am somewhat unsure of my husband and I being separated. Since the "separation" we have spent the night in each others residences. I of course have a key to the cabin, since it is half mine, and he has a key to my house, where he comes and goes at will without a prior phone call. He also has all his things here and uses the downstairs as his legal office and sees clients here from time to time. He uses the house phone for business and faxes. Is this considered a separation?

You would only be legally separated after a judge entered a decree of legal separation. The law does provide that earnings and accumulations are permitted where the spouses are "living separate and apart." If you each had a key to the other's residence only for emergencies or for issues having to do with minor children, and never slept at the other's home, then you could argue separate and apart. If you go back and forth frequently, it may be more difficult to make that distinction. When you're both sleeping in both places, even sporadically, it may be hard to convince the judge that you're living separate and apart. Having your husband sign an agreement that everything acquired at this point is separate property may help you avoid any issues, if you can get him to do it.

I will tell you that...the things you have to go through to be an Expert are quite rigorous.

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